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People v. Brown

Court of Appeals of Illinois, First District, Second Division

June 14, 2018

JERRY BROWN, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 10 CR 4124 Honorable Michele M. Pitman, Judge, presiding.

          JUSTICE HYMAN delivered the judgment of the court. Justices Neville and Pucinski concurred in the judgment.



         ¶ 1 We vacate defendant Jerry Brown's conviction for aggravated battery of a senior citizen under the one-act, one-crime doctrine because we conclude that a single punch was used as the basis for the aggravated battery conviction, and as the element of force for the robbery conviction, without evidence of other use of force, threat of force, or verbal threat.

         ¶ 2 This case comes before us again (People v. Brown, 2017 IL App (1st) 151311-U), after the Illinois Supreme Court denied Brown's petition for leave to appeal and entered a supervisory order directing us to vacate the order and consider the effect of People v. Coats, 2018 IL 121926, on the issue of whether Brown's convictions for robbery and aggravated battery of a senior citizen violate the one-act, one-crime rule.

         ¶ 3 Background

         ¶ 4 Brown and Stevie Smith were tried on charges of first degree murder, aggravated battery of a senior citizen, robbery, and aggravated battery. At trial, Deborah Halloran testified that she managed the bar at the Veterans of Foreign Wars (VFW) post in Midlothian, where William Burtner served as the commander. About 9:30 a.m. on November 16, 2009, Burtner and Halloran prepared money for deposit into four accounts the VFW maintained at A.J. Smith Bank. Three bank deposit bags held deposits for three separate accounts. An additional amount was placed inside a cigar box for Burtner to open a new account. Burtner left the VFW post with the three deposit bags and the cigar box, and drove to the bank.

         ¶ 5 A teller at A.J. Smith Bank, Connie Weimar, testified that about 10:15 a.m., she looked out the window and saw Burtner walking towards the bank carrying bank deposit bags in his hand. As Burtner approached the entrance, he passed behind a wall and Weimar lost sight of him. Next, Weimar saw a man wearing a hooded sweatshirt quickly walking past the front of the bank towards Burtner. The hood covered the man's head, and Weimar could not see his face. The man had nothing in his hands. The man disappeared from Weimar's sight for "a matter of seconds." When next she saw him, the man held something in his hands, had turned around, and was running to the adjacent Wendy's parking lot. There, he entered the front passenger seat of a black car which drove off, headed north. Weimar yelled "Call 911." Two bank employees brought Burtner inside the bank and sat him down in a chair. Later, Smith was determined to be the man wearing the hooded sweatshirt.

         ¶ 6 Tamara Esposito heard her supervisor yell "Call 911, I believe somebody was just robbed." Esposito went to the front door and saw Burtner on the ground outside. Esposito and a security guard helped Burtner, who asked Esposito to retrieve a cigar box, which contained money and checks. Esposito saw a black sports car speeding out of the Wendy's parking lot. Esposito and the security guard brought Burtner inside and sat him down in a chair. Burtner was slightly bent over and holding his left side near his rib cage. His breathing was labored, and he had difficulty speaking. Burtner told Esposito that he was punched in his left side.

         ¶ 7 Paramedics treated Burtner at the bank. Burtner was holding his left side in his back rib area. Burtner complained of pain in that area, and also experienced pain when taking deep breaths. Paramedics transported Burtner to the hospital. The State presented a stipulation that Burtner told a paramedic that "he was hit from behind, and he fell."

         ¶ 8 Meanwhile, a high-speed police chase of the black car, driven by Brown, had ensued. Brown and Smith crashed into another automobile and came to a stop. They ran in opposite directions. Minutes later, police found Brown hiding underneath a car in a backyard and placed him in custody. During a custodial search, police recovered cash from his right pocket. The A.J. Smith bank deposit bags and money were found inside the car. The Illinois State Police crime laboratory tested blood samples taken from the passenger's side of the black car. The results indicated a DNA match with Smith. He was arrested on February 5, 2010.

         ¶ 9 Mary Burtner, William's wife, testified that her husband was treated and released from the hospital on the day of the robbery. When he returned home, he was in a lot of pain, uncomfortable, and favoring his left side. The next day, he felt worse. The following morning, November 18, although still in a lot of pain, he went to his chemotherapy appointment for treatment of lung cancer. At the hospital, he couldn't walk due to his pain and needed a wheelchair. When the couple arrived home about 3 p.m., Burtner was still holding his left side and was unable to get out of the car. Mary assisted him into their home, and into bed. Burtner fell asleep and Mary checked on him. About 8:30 p.m., she found her husband unresponsive and called 911.

         ¶ 10 When paramedics arrived, Burtner was unresponsive, not breathing, and had no pulse or blood pressure. Paramedics performed CPR, administered cardiac medications, and transferred him to the hospital. There were no signs of life. The State presented Burtner's death certificate indicating that he was 65 years old.

         ¶ 11 Assistant chief medical examiner, Dr. Ponni Arunkumar, performed an autopsy on Burtner. He determined that Burtner suffered from lung cancer, two prior heart attacks, and heart disease. She found that Burtner had three fractured ribs on the left side of his chest wall. The rib fractures had occurred less than three or four days earlier, and were consistent with being punched. Dr. Arunkumar concluded that Burtner's cause of death was hypertensive cardiovascular disease. The fractured ribs, which were due to an assault, ...

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